Meeting the challenge of maternal choice in mode of delivery with vaginal birth after caesarean section: a medical, legal and ethical commentary



Births by caesarean section constitute about 25% of our births in the UK.[1] Therefore a substantial number of our obstetric patients will have this risk factor in their future pregnancies. Every labour and delivery carries risks to both the mother and baby, and obstetric care is centred on identifying risks, counselling women on the relative risks of various options, and seeking to adopt the choice that carries a favourable risk–benefit profile. Evidence shows that vaginal birth after caesarean section (VBAC) is sufficiently safe for the majority of women with one previous lower segment incision, and is supported by the Royal College of Obstetricians (RCOG). It is advised that VBAC labours are undertaken in hospitals with facilities for emergency surgery and advanced neonatal resuscitation, with continuous electronic fetal monitoring and intravenous access.[2]

In most VBAC cases, women will follow medical advice on labour and delivery. However, there are a small number of women who wish to consider VBAC in circumstances other than those recommended. Such nonconventional circumstances are perceived to bring maternal autonomy into conflict with a reasonable degree of maternal and fetal safety, which can be distressing and challenging to healthcare professionals.

Patient-centred practice is the current UK standard of care, and is actively promoted by the UK Government and the National Institute for Health and Clinical Excellence.[3] The NHS Constitution[4] sets out patients' rights within the NHS, fundamentally placing patients at the centre of the decision-making process about the care they receive. The days when paternalistic doctors would dictate patient treatment should be gone.

With a rising caesarean section rate across the world,[5] VBAC labours are relatively commonplace and so we are more likely to come across nonconventional birth plans. In this article, we discuss some of the factors that influence decisions regarding mode of delivery following a previous caesarean section, and briefly cover the English legal background to these discussions and decisions. We recognise that the legal framework in regard to women's rights, fetal rights and the age of majority, vary between individual countries and as such it would be impossible to discuss all permutations. We encourage readers to ensure that they know the legal requirements in their country of practice, but believe that the general ethical principles and approach to challenging cases are similar.

In the hope of avoiding alienating women from standard obstetric and midwifery care, we also suggest ways to optimally manage these insistent women in the antenatal period to achieve a balance between empowering a woman to maintain maternal choice and autonomy, and promoting reasonable safety for both mother and baby in the current and future pregnancies.

What kinds of VBAC choices pose professional challenges?

Provided are three examples of women with previous caesarean deliveries who instigated nonconventional VBAC birthing plans. Typically these go against recommended practice in relation to the place or conduct of labour—most commonly home birth or labouring in water.

Case 1

A 37-year-old woman with two children, both born by elective caesarean section for obstetric indications, wished to attempt vaginal delivery in her third pregnancy. She was seen by two different obstetric consultants during the antenatal period, both of whom recommended delivery by elective caesarean section, and who would not entertain the idea of VBAC despite RCOG guidance suggesting that vaginal delivery can be contemplated.[2] There were no other obstetric indications for caesarean section, and the woman was very unhappy with the paternalistic views of the consultants and felt unsupported. She subsequently chose to labour at home with an independent midwifery team.

She went into labour spontaneously at home at term. Her independent midwifery team contacted the hospital after 24 hours duration of ruptured membranes and 12 hours duration with failure to progress at 8-cm dilatation, because despite their repeated recommendations she refused to attend hospital. This stemmed from the way her case was handled in the antenatal period, and her belief that the hospital would force her to have a caesarean section against her wishes due to a disagreement with her birthing plan. She did eventually attend hospital after 24 hours of being 8 cm dilated, and agreed to undergo caesarean section after a further 3 hours of discussion.

Case 2

A 28-year-old woman whose first child had been born by emergency caesarean section for fetal distress following induction of labour, which itself commenced at 42+5 weeks of gestation. In her second pregnancy, she again wished to consider prolonging the pregnancy to 43 weeks of gestation, and wanted a water birth at home. Following a very detailed plan of care with the supervisors of midwifery, she laboured spontaneously and had a vaginal birth at home with no complications for either herself or baby.

Case 3

A 51-year-old woman with two previous abdominal myomectomies where the uterine cavity was not breached, was counselled in her first pregnancy to have an elective caesarean section. She was dissatisfied with the advice and transferred her care to another unit in the third trimester, allowing little time to formulate a birth plan. She subsequently delivered by emergency caesarean section due to failure to progress in labour. In this index pregnancy, she conceived through in vitro fertilisation with donor eggs, and wanted to attempt water birth. Her independent midwife recommended a specific obstetrician, with whom she had repeated lengthy discussions regarding her birth plans. With these detailed plans in place, she maintained her wish for a water birth until 41 weeks of gestation. At this stage, having not laboured spontaneously she chose to undergo elective caesarean section.

Factors influencing women's decisions on VBAC

Several qualitative studies have looked at factors that influence a woman's decision to attempt VBAC following one caesarean section.[6-9] These factors are wide ranging, and can be grouped into three distinct themes.

First a fear of, or a desire to avoid, caesarean section. This includes wanting a speedier recovery or a need to manage family obligations (driving children to school, shopping), which would be more difficult following major abdominal surgery compared with vaginal delivery. Some women want to avoid surgery because of previous negative experiences (including their previous caesarean) or because of the risks of surgery, or wanting to have a large family in the future.

Second, some women are scared of, or angry at, hospitals and healthcare providers. This may stem from a previous negative experience, or may be because they perceive a lack of choice and control. VBAC itself is perceived by some women as giving them choice and control,[7] compared with elective caesarean section. But when combined with a fear of over-medicalisation, enforced bed rest during labour and medical pressure to undergo caesarean section, women may feel that a hospital delivery will hinder their active labouring. We must remember that continuous support during labour increases the woman's chance of vaginal delivery,[1] and this is more likely in the setting of her choosing with healthcare professionals that she trusts.

Third, some women have an overwhelming desire to experience labour and vaginal birth, seeing it as fundamental to their perception of femininity and motherhood. Many feel that the initial mother–baby bond is stronger with a vaginal birth compared with caesarean section.[6]

Outside sources, including cultural background, friends, family and independent patient support groups, as well as internet information and forums (e.g. MumsNet, National Childbirth Trust, Babycentre) may also influence an individual woman's decision.

These reasons may apply to any woman opting for VBAC. However, particularly strong beliefs, compounded by intense emotions, mean that some women will ultimately choose a nonconventional VBAC birth plan as a way of addressing them. Understanding these reasons enables us to counsel women better and create a mutually agreed birth plan.

The professional's view of VBAC

Invariably the healthcare professional's view of VBAC centres on risk: risk to the mother, risk to the fetus and the risk of professional negligence.[6] These concerns may influence the advice given by an obstetrician. It may also affect their approach to counselling,[7] leading an obstetrician to appear dismissive or obstructive, in an attempt to dissuade a woman from following her choices. There have been reports of obstetricians and midwives playing the ‘dead baby card’[10]; a form of emotional blackmail, where the threat of the baby's death is blamed on the mother if they do not agree to a particular obstetric intervention, most commonly caesarean delivery.

Human beings take risks all the time, and women frequently take risks during their pregnancies—smoking, drinking alcohol, not attending antenatal appointments, failing to take medication correctly.[11] A delivery following a previous caesarean section will always carry risks—maternal risks with repeat surgery, and increased fetal risks with a VBAC attempt. Both delivery options will also have potential risks and benefits for future pregnancies.

Background to valid consent in adults

Having a good grounding in the legal issues of consent, mental capacity and the legal position of mother, fetus and healthcare professionals is essential in managing these challenging women with nonconventional VBAC birth plans. A woman expressing a wish for any VBAC birth plan is using her autonomy to make a fully informed decision to a trial of a particular mode of delivery. It must be recognised that both professional guidelines and the law recognise the right of an adult with capacity to refuse medical intervention (in these cases, elective caesarean delivery or a recommended birth plan), even if that refusal results in harm to the patient, including death.

The decisions made by adults in respect to medical treatment for themselves are governed by valid informed consent. An adult must be given sufficient relevant information to make a decision, and can give their consent to treatment if they have the capacity to consent and the decision is being made without undue influence from others.

The ethical and legal position of the mother—valid consent and the Mental Capacity Act 2005

The Mental Capacity Act 2005 enshrined existing case law on capacity into statute, and now governs decision making in adults (where this is a person aged 16 years or more) in the UK.

Key sections of the Act can be seen in Box 1.

Box 1. Key Sections of the Mental Capacity Act 2005

  1. Section 1(2) Adults must be presumed to have capacity unless it can be shown they lack capacity (aged 16 years or more)
  2. Section 1(4) An unwise decision does not mean the person lacks capacity
  3. Section 2(1) A lack of capacity must be due to an impairment or disturbance in brain/mind function at the time a decision is needed
  4. Section 2(2) The impairment or disturbance in the brain/mind may be permanent or temporary
  5. Section 3(1) Capacity is shown by being able to—
    1. Understand the information relevant to the decision,
    2. Retain that information,
    3. Use or weigh that information as part of the process of making the decision, and
    4. Communicate the decision

NB: The sections are not reproduced verbatim in order to enhance understanding

There is no legal obligation in the UK for one person to help another by using their body, either through donation of a part of their body (during life or after death), or through the functioning of their body as in pregnancy. However, in spite of the central tenet of patient autonomy in medical ethics, some ethicists argue that women have a moral duty to protect the unborn fetus within them, and act in a way that promotes the fetus's best interests.[12]

The ethical and legal position of the fetus

The legal status of the fetus is one of the most controversial topics in reproductive law today. Invariably surrounded by strong emotions and personal beliefs, it is not surprising that healthcare professionals find it challenging to accept situations where the fetus's life is at risk because of the mother's seemingly unwise decision.

In English Law the fetus is not considered a legal person until it is born, and so has no legal rights while in utero. However, in spite of having no legal rights the fetus does not amount to ‘nothing’, and some of its interests are protected or considered. Under the Congenital Disabilities (Civil Liability) Act 1976 a child can bring legal proceedings for injuries occurring before birth—the basis for which current birth injury litigation is secured. Under Section 1(1) of this Act liability is only confined to people ‘other than the child's own mother’.

The ethical and legal position of NHS healthcare professionals

The General Medical Council's (GMC) Good Medical Practice states that a doctor's duty is to ‘make the care of your patient your first concern’.[13] This is echoed by the National Midwifery Council's (NMC) Code of Conduct statement ‘make the care of people your first concern’.[14]

However, it must be made clear that our duty of care is to the pregnant woman only, and by forward planning, to the child once it is born. There is no legal duty to the unborn child.

The GMC also states that a doctor's duty is to ‘work in partnership with patients’, and ‘respect patients' rights to reach decisions about their treatment and care’. In situations where women wish to embark on nonconventional modes of delivery with VBAC, it is proper that we accept their choices and ensure that they are fully informed to make such a decision.

We suggest that the information for women who are considering a nonconventional VBAC birth plan must include the risks and benefits of both the recommended birth plan and the nonconventional plan. The possible complications to the mother and fetus of each plan should be explicit and in plain language to ensure comprehension. These risks should be individualised according to patient factors such as body mass index and home-to-hospital distance.

Having ensured that the woman has understood all the information, she should be given time to weigh the information, ask any questions and be allowed to make her decision. If, as professionals, we are content that a woman has capacity to make a decision and has been given all the information required to make that decision, we must respect that woman's choice, even if we do not agree with it.

If women go against medical advice and complications ensue, NHS Trusts may still be held liable, and individual professionals may be questioned by their governing bodies. This may stem from a failure to give relevant information, or the provision of incorrect information such that the woman would have made a different decision had she known. If a woman continues with her nonconventional birth plan and complications do arise, we must still provide care according to our professional standards and may be held liable if our care falls below these. If, however, a baby is born and suffers harm during the birth, the NHS Trust, obstetricians and midwives involved will incur no legal liability unless there is proven negligence on their part,[11] so reminding us of the importance of meticulous, legible and contemporaneous documentation.

As well as ensuring that a woman is fully informed in making a decision, we must ensure that she is making a choice without duress. Her motives should be questioned in the absence of family and partners. If an interpreter is required, this should be a professional interpreter rather than a member of the family. We must remain alert to the possibility of domestic violence in women who opt for home birth.

The ethical and legal position of independent midwives

Independent midwives practise outside the NHS, and are often engaged for antenatal and intrapartum care by women with nonconventional birth plans, including but not limited to VBAC. Up until 1994, they had professional indemnity insurance as a benefit of their membership of the Royal College of Midwives (RCM). This ceased in 1994, and up until 2002 was provided by other indemnity providers. However, since 2002, no professional indemnity insurance has been available to independent midwives, and if complications arise with their clients, they are only open to personal liability, and this should be made clear to prospective clients.[14] EU directive 2011/24/EU comes into force on 25 October 2013, which will make it illegal to practise without professional indemnity insurance. A report from the RCM and NMC in 2011[15] found that it would not be feasible for this to be provided, and there are ongoing calls for this situation to be addressed to enable independent midwives to continue to practise legally.

The recent case of Ternovszky versus Hungary[16] in the European Court of Human Rights, highlighted the right of women to determine the circumstances and location in which they give birth. It was found that Hungary's policy of making it illegal for professionals to be involved in home births, breached Ms Ternovszky's human rights in respect of her right to privacy and family life. Decisions in the European Courts set legal precedents not just for the country where the case originates, but for all European Union countries. Hence, Ternovszky versus Hungary also sets a precedent for women wanting to choose the circumstances of their labour and birth in the UK.

The impending crisis in independent midwifery in the UK will develop if professional indemnity insurance cannot be secured, and we will be faced with the situation where women are either unable to have the birth plans they want (which would be contrary to the European Court's judgement) and so women's choices are restricted, or midwives risk their registration and legal action for practising without indemnity coverage. At worst, women will labour at home unattended rather than attending hospital. If independent midwifery is to dwindle due to legal constraints, the NHS will have to become increasingly used to caring for women with nonconventional birthing plans not just limited to VBAC, and will need to increase the number of midwives required to provide a home birth service.

The role of primary care

Primary care is involved with obstetric care, but to a much lesser extent than previously. However, it is often the case that general practitioners (GPs) will be more familiar with patients, affording them a stronger relationship. Patients may also view them as separate to hospital care, which may allow GPs to explore their fears or the reasoning behind their birthing choices. They can give objective advice, and can remind women of their right to receive care at another unit.

Approaching the nonconventional VBAC patient and supporting maternal choice

If as professionals we act in a paternalistic and dismissive manner, with an aim of persuading women that they are wrong in their choices, common sense and experience tell us that we are more likely to alienate a woman. Once this occurs, it is difficult to rebuild these relationships, and women may transfer their care to different consultants, different hospital trusts, or to independent midwifery practices in an effort to find a suitable fit for their choices. During the finite time period of a pregnancy, this may leave little time for cementing relationships or thorough discussions. Although we are not suggesting that we agree with every woman's choice, we feel that a collaborative approach together with the recognition that a woman has a legal right to make whatever choice she wants, is more conducive to a good antenatal care period and a good doctor–patient relationship.

Instead, we must start with an understanding that women will continue to ask about nonconventional birth options. We must then accept that following detailed informed discussions, some women will want to continue with their nonconventional plans. Rather than dismiss these women, we suggest a collaborative approach, with the intention of maximising fetal and maternal safety. By maintaining a good relationship between the woman and her healthcare professionals this should also mean that a woman will continue to seek help if needed rather than as a last resort. After all, surely it is better for a woman's health that complications can be addressed promptly and that her VBAC attempt with two prior caesarean deliveries is conducted in a supportive hospital setting with the necessary facilities available, than in her home? And if she does opt for a home birth, surely it is better that she feels supported by her NHS hospital such that she is willing to attend hospital promptly rather than as a ‘last resort’ when advised to (see Case 1)?

Having accepted that some women will opt for nonconventional birthing plans, and ensuring that they have capacity and sufficient information to facilitate their choice, we should continue to provide the care and support that they require during their pregnancy. We propose the following as a way to provide optimal care for such women opting for nonconventional VBAC births (see also Box 2 for an at-a-glance summary).

Box 2. Summary of Antenatal Plan of Care for Non-Conventional VBAC Birth Plans

  • 1.Named lead consultant obstetrician
  • 2.Senior midwifery involvement
  • 3.Inform general practitioner
  • 4.Special antenatal appointments outside normal clinic times
  • 5.During the actual consultation:
    1. Explore the woman's wishes and feelings and the reasons for their choices
    2. Nonjudgemental approach
    3. Avoid alienating the woman
  • 6.Offer second opinions
  • 7.Ensure the woman knows that she can change her mind at any time
  • 8.Documentation must be legible, meticulous and unambiguous
  • 9.Formal letter to the patient with a clear plan and explicit documentation of acting contrary to medical advice
  • 10.Clear written plan in the notes
  • 11.A brief case summary providing the woman's details and birth plan should be disseminated to relevant staff
  • 12.Contact details of relevant hospital staff should be given to the woman
  • 13.Continuity of care
  • 14.Once in labour:
    1. Inform consultant obstetrician and senior midwife on call
    2. Ensure all staff are aware of the birth plan
  • 1.Named lead consultant obstetrician with a thorough grounding in the risks and benefits of all birthing options, and experience in counselling such patients
  • 2.Senior midwife case review and appointments to discuss birth plans
  • 3.Inform GP of patient's decision—it may help if the GP discusses the patient's reasons behind her choices
  • 4.Special antenatal appointments outside normal clinic times—these women need sufficient time to discuss their needs, away from the pressures of a busy routine antenatal clinic. This helps the woman to feel supported and builds a good relationship. However, in the majority of Trusts this would have to be as part of a new clinic, and as such would need to be commissioned accordingly.
  • 5.During the actual consultation:
    1. Explore the woman's wishes and feelings and her understanding of all choices, and the reasons for her choices
    2. Adopt a nonjudgemental approach
    3. Avoid alienating the woman, as this may make the woman less keen to seek help in the future
  • 6.Offer second opinions (and provide a consultant who is also used to dealing with such cases) if the patient is unhappy with the discussion
  • 7.Ensure that the woman is aware that she can change her mind at any time during the pregnancy, will not be criticised and will be supported in whichever choice she makes
  • 8.Documentation must be legible, meticulous and unambiguous
    1. Acts as legal documentation as to what was discussed in case of future problems
    2. Allows the woman to recap on discussions in her own time
    3. A formal letter documenting discussions and decisions should be produced and sent to the woman and her GP after antenatal clinic appointments to ensure correct understanding from all parties. It is essential that it is clear that a woman is opting for a course that goes against medical recommendations. Box 3 provides an example of such a letter
  • 9.Clear written plan in the notes
  • 10.A brief case summary providing the woman's details and birth plan should be disseminated to relevant staff, ensuring that confidentiality is maintained—labour ward, senior midwives, community midwives, consultants, ambulance services, GP
  • 11.Contact details of relevant hospital staff should be given to the woman to allow effective communication
  • 12.Continuity of care with obstetric and midwifery staff is essential to ensure trusting relationships
  • 13.Once in labour
    1. Inform consultant obstetrician and senior midwife on call that the labour has started
    2. Ensure all staff are aware of the birth plan.

Box 3. Suggested format for a letter documenting nonconventional birth plans

Dear [Name of Patient],

Thank you for attending the antenatal clinic today to discuss your current pregnancy and mode of delivery. This letter is aimed at documenting our discussions to ensure we are in agreement with what was discussed.

[Summary of her past obstetric history and deliveries]

In this pregnancy you have requested [description of nonconventional birth plan]. Following a previous caesarean delivery, recommended care for those wishing vaginal birth (VBAC) is to have a hospital birth with continuous electronic fetal monitoring and intravenous access (a drip) in place. This is to detect possible signs of tears in the womb during labour, which are rare but can be life-threatening to mother and baby. This then allows us to intervene early with the intention of reducing complications such as major bleeding for the mother and brain damage and death to the baby. We accept though that some women wish to have alternative birth plans for various reasons, against the recommendations of doctors and midwives.

In your case, you wish to [insert birth plan] because of the following reasons…

This choice of birth plan does go against medical recommendations for a VBAC labour, and we would like to make the following recommendations for your care during labour and delivery…

We will support you in your choice to achieve your desired birth plan and will continue to discuss with you how this can be achieved. We recognise that women also change their minds, and opt for the medically recommended course of action. We want to assure you that you will face no criticism for this, but will be supported if this occurs.

Please do not hesitate to contact us if there are any further issues you wish to discuss.

Consultant name and contact details:

Supervisor of Midwives name and contact details:

Another legal benefit of providing such antenatal care, is to ensure capacity at the time the plan is made. In relation to the use of advance directives in other areas of healthcare, it has been suggested that in cases where capacity may be challenged in the future, that capacity is medically assessed and documented at the time of making such decisions.[17] Unfortunately from recent legal history, we know that women in labour are considered to lack capacity, with relative ease. Reasons given in notable cases include needle phobia,[18] pain and emotional stress of labour[19] and panic.[20] In all of these cases, mothers had refused caesarean sections against medical advice, the Courts found them to lack capacity, and authorised emergency caesarean deliveries.


Women increasingly want to exercise their autonomy when it comes to planning their labour and deliveries. Women wishing to undergo VBAC will usually follow the recommendations of their obstetric team and labour in a consultant-led delivery suite with continuous fetal monitoring. A small number of women will wish to labour or deliver in nonconventional manners despite their VBAC status. Legally a woman is allowed to express her autonomy in this way provided she has capacity to do so, and has sufficient information to make such a decision. We should fully explain the risks and benefits of all VBAC delivery options, and even if we disagree with a woman's decision we should support them as best we are able to maximise safety for both mother and baby. A nonjudgemental and supportive approach should encourage women to continue to engage with medical care.

Disclosure of interests

None declared.

Contribution to authorship

SCD developed the concept of the paper and was primary author. SW was contributory author on legal matters and SJW revised the paper.

Details of ethics approval

No ethics approval was required by virtue of the nature of the article, and the patient cases being anonymised.


No funding was received.



Reviewer's commentary on ‘Meeting the challenge of maternal choice in mode of delivery with vaginal birth after caesarean section: a medical, legal and ethical commentary’

Given the current caesarean rates in essentially every jurisdiction where BJOG is circulated, it would seem safe to assume that all obstetric practitioners have dealt with differences of opinion about patient preference regarding trial of labour after caesarean (TOLAC). Unconventional birth plans can present with seemingly endless combinations of requests but need to be distinguished from risky birth plans. A water birth in a referral centre might be considered unconventional but is certainly less risky than an intentional home birth in a rural setting during a blizzard.

Dexter et al. list three important factors that influence women's decisions on TOLAC. There is no question that a desire to avoid a repeat caesarean, fear of hospitals and a desire to experience labour and vaginal birth can all provide substantial motivation for a woman's decision regarding her mode of TOLAC. This author would suggest a fourth factor, namely, anger with a previous birth experience. Although it might be argued that this fourth factor could be subsumed in any of the previous three, reaction against medical hubris (as exemplified by Case 1) is a powerful motivator and needs to be prevented. Empathy is as important to being a good physician as technical competence, and obstetric care providers should aim to become proficient at identifying and responding to the verbal and nonverbal clues that our patients often give regarding their emotional state (Empathy in women's health care. Committee Opinion No 480. ACOG, Obstet Gynecol 2011;117:756–61).

It is (thankfully) a very rare obstetric provider who is truly devoid of empathy for his/her patients. Likewise, it is a very rare pregnant woman who does not want the best outcomes for both her family and herself. That said, good provider communication skills ( Accessed 26 May 2013) can facilitate collaboration and compromise in the setting of proposed risky TOLAC choices and can additionally reduce the prospects of liability claims. As also noted by Dexter et al., once a patient feels alienated, it is difficult to rebuild a trusting relationship. Although hardly a new insight, it again emphasises that prevention of difficult situations is far preferable to trying to deal with them after they have developed.

The increasing reliance on electronic communication, combined with the paucity of editorial filtration on the internet, adds further impetus to establishing and maintaining rapport with our fellow human beings, be they patients or members of the healthcare team. It is possible to find support on the internet for any number of risky activities, but one has to be motivated to look for it.

Open communication—and careful documentation—about motivations behind risky TOLAC plans and viable alternative options, plus open consideration of unconventional birth plans (vide supra) can all help to get us where we want to be, namely, satisfying birth experiences with healthy mothers and babies. Finally, this manuscript again emphasises the importance of minimising unnecessary operative interventions. Every unnecessary primary caesarean delivery avoided is one less TOLAC choice.

Disclosure of interests

The author has no conflicts of interest.

  • Michael Varner

  • University of Utah Health Sciences Center, Obstetrics and Gynecology, Salt Lake City, UT, USA